LexS. KALAWATI versus DURGA PRASAD & ANR.
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r 424 A ll S. KALAWATI v. DURGA PRASAD & ANR. May 2, 1975 [A. ALAGIRISWAMI, P. N. BHAGWATI AND P. K. GOSWAJ>U, JJ.J Constitution nf India, 1950-Art. 226-Petition dismissed in Jimine but a certificate granted under Art. 133(1) (a}-Validi'ty of certificate. C The appellant filed a writ petition before the High Court under Art. 226 of the Constitution impugning the order of the Deputy Director of Consolida- tion. The High Court dismissed he petition in lbnine but granted a certificate under Art. 133(1)(a) on the basis of valuation. ; On appeal to this Court, the respondent raised a preliminary objection that the certificate granted was not valid because the judgmeilt of the Hi'gb D Court was one affirming the judgment of the Deputy Director, Consolidation. Setting aside the order of the High Court, HEID :The certificate granted by the High Court is competent. An order of a High Court under Art. 226 or 227 is an order in a civil proceeding of a High Court and so falls under Art. 133. But it cannot be said that such l~ cases a party is exercising any right of appeal conferred on him by any statute nor is the High Court exercising any power of appeal. Whatever might be the position even in respect of petitions under Arts. 226 or 227 of the Constitution where the Court goes into the merits of the question, it cannot be doubted that where it dismisses such a petition in limine it simply refuses to exercise its powers under Art. 226 or 227 and such an order cannot bi:! said to be an order passed on appeal or as affirming the decision of the Court F immediately below. Therefore. the order of the Hi$h Court in the present case is not a judgment of affirmance. [427F, 427AB] Abdul Majid v. lawahar Lal, (1904] I.L.R. 36, All. 350, Karsondas Dharamscy v. Gangab.'1ai. [1907] I.L.R. 32 Born. 108, Sunder Kaer v. Chandish- war Prasad Singh l.L.R. 30 Cal. 679 Promotho Nath Roy v. W. A. Lee, [1919] 33 C.L.J. 128, Ramaswami Udayar v. Sevu Aru Ramanathan Chettiar A.I.R. 1942 Madi. 357. Purnendu Nath Tagore v. Kanai/al Ghoshal (1948] 2 Col. 202, Ganesh Prasad v. Mr. Makhna A.l.R. 1948 All. 375 and Oulabchand G v.~ Kudilal A.l.R. 1952 M.B. 149, referred to. H (2) The order of the Deputy Director of Consolidation is not. clear and since the High Court dismissed the appellants petition in limine the reasons which Jed the High Court to dismiss are not known. Hence it is necessary that the High Court should deal with the petition before it and dispose of it by a proper order. [427 GH] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1641 of 1969. From the Judgment and decree dated 13-9-1967 of the High Court of Allah'.tbad in Civil Writ Petition No. 2334 of 1963. R. H. Dhebur, D. v. Desai and P. C. Kapur for the appellant. G. N. Dixit, Uma Mehta, S. Bagga and Raj Kumar Mehta, for the Respondent. > > s. KALAWATI v. DURGA PRASAD (Aillgiriswami, J.) The Judgment of the Court was delivered by ALAGIRISWAMI, J.-The appellants is the widow of one Gover- dha,ndass. The 1st respondent is her husband's brother. Goverdhan- 425 A dass and the 1st respondent are the sons of one Bhojraj. The appel- lant claimed 11 plots in Khata No. 97 as land _in which she was entitled to be a joint tenant along with the 1st respondent. She aJso claimed certain other plots on the ground that they were acquired by B Bhojraj and therefore it was joint Hindu family property and she was entitled to inherit those shares also as a co-tenant along with 1st respondent. She .succeeded in respect of the 11 plots in Khata No. 97 but failed in respect of the other .Plots. The matter first came up before the Consolidation Officer and thereafter on appeal before the Settlement Officer and finally before the Deputy Director, Consolidation in revision. Against the order of the Deputy Director, Consolidation she filed a petition before the High Court of Allahabad under Article 226. The High Court dismissed it in limine but granted a certificate under Article 133(1) (a) of the Constitution. A preliminary objection was raised on behalf of the 1st reswn- dent that the certificate granted was not valid because the judgment of the High Court was one affirming the judgment of the Deputy Director, Consolidation. One of the questions on which the decision of this question. depends is whether the Deputy Director, Consolida- tion as well as the other two officers exercising power under the U .P. Cons
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